Citation Nr: 9832558
Decision Date: 10/30/98 Archive Date: 11/03/98
DOCKET NO. 95-38 083 ) DATE
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in Huntington,
West Virginia
THE ISSUE
Entitlement to service connection for a lung condition as
secondary to mustard gas exposure.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the
United States
ATTORNEY FOR THE BOARD
Dennis F. Chiappetta, Associate Counsel
FINDINGS OF FACT
1. The veteran in this case served on active duty from June
1942 to December 1945.
2. On October 21, 1998, the Board was notified by the
Department of Veterans Affairs (VA) Regional Office,
Huntington, West Virginia, that the veteran died on October
[redacted], 1998.
CONCLUSION OF LAW
Because of the death of the veteran, the Board has no
jurisdiction to adjudicate the merits of this claim. 38
U.S.C.A. § 7104(a) (West Supp. 1998); 38 C.F.R. § 20.1302
(1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Unfortunately, the veteran died during the pendency of the
appeal. As a matter of law, veterans’ claims do not survive
their deaths. Zevalkink v. Brown, 102 F.3d 1236, 1243-44
(Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330, 333-34
(1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994). This
appeal on the merits has become moot by virtue of the death
of the veteran and must be dismissed for lack of
jurisdiction. See 38 U.S.C.A § 7104(a); 38 C.F.R. § 20.1302
(1998).
In reaching this determination, the Board intimates no
opinion as to the merits of this appeal or to any derivative
claim brought by a survivor of the veteran. 38 C.F.R.
§ 20.1106 (1998).
ORDER
The appeal is dismissed.
BARBARA B. COPELAND
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision is the
notice of the action taken on this appeal by the Board of
Veterans' Appeals.
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